JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TAYLOR -v- CLARK [2023] WASC 365
CORAM: HOWARD J
HEARD: 11 SEPTEMBER 2023
DELIVERED : 27 SEPTEMBER 2023
FILE NO/S: SJA 1025 of 2023
BETWEEN: BENJAMIN TAYLOR
Appellant
AND
TOM ROBERT CLARK
Respondent
ON APPEAL FROM:
For File No: SJA 1025 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M HOLGATE
File Number : KA 566 of 2022
Catchwords:
Criminal Law - Single Judge Appeal - Application for leave to appeal against acquittal - Statutory Interpretation - Whether the prescription of a 'Gel Blaster' as a 'Prohibited Weapon' under the Weapons Regulations 1999 is invalid because it is outside the scope and purpose of the Weapons Act 1999 - Appeal allowed - Conviction recorded
Legislation:
Criminal Appeals Act 2004 (WA)
Customs (Prohibited Imports) Regulations 1956 (WA)
Interpretation Act 1984 (WA)
Weapons Act 1999 (WA)
Weapons Regulations 1999 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Appellant | : | J M Misso |
| Respondent | : | A J Greinke |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Ross Williamson |
Case(s) referred to in decision(s):
Electricity Generation & Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3
Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301
Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180
Mohammadi v Bethune [2018] WASCA 98
Morton v Union SS Co of New Zealand Ltd (1951) 83 CLR 402
OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1
Samuels v State of Western Australia (2005) 30 WAR 473
Shanahan v Scott (1957) 96 CLR 245
SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58
HOWARD J:
The charge and acquittal below
Following a half day trial on 24 February 2023, the respondent was acquitted of an offence against s 6(1)(b) of the Weapons Act 1999 (WA) of possessing a prohibited weapon not being a person exempted under ss 6(2) and (3) or s 10 of the Weapons Act.
The provision in s 6(1)(b) stated:
Except as provided in subsections (2) and (3) and section 10, a person who-
…
(b)carries or possesses a prohibited weapon;
or attempts to do any of those things, commits an offence.
Penalty: imprisonment for 3 years and a fine of $36,000.
It was not challenged below, and was found by the learned Magistrate, that the respondent was in possession of two 'gel blasters'.[1] Further, it was accepted below, and in this Court, that the gel blasters were 'prohibited weapons' within the Weapons Act and Weapons Regulations 1999 (WA).
[1] Trial Judgment 10 March 2023, ts 3.
Regulation 4 provided:
An article described in the third column of Schedule 1 is prescribed to be a prohibited weapon.
The definition of a…
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- AGLC
- Taylor v Clark [2023] WASC 365
- Case
- [2023] WASC 365
- Decision Date
CaseChat Overview and Summary
The Court of Appeal carefully considered the interpretation of the relevant statutes and regulations, including the Weapons Act and the Interpretation Act. The Court noted that while the respondent had relied on the common law definition of a weapon to argue that a gel blaster was not a firearm, this reasoning was not binding on the Court. The Court held that it was not bound by the findings of the lower court and could make its own determination based on the statutory language and context. The Court emphasised that there is only one true construction of the relevant statutes and that it is the Court’s responsibility to determine this interpretation. The Court also highlighted that while reasonable minds might differ on the interpretation of words, the final determination rests with the last court of authority.
In reaching its decision, the Court of Appeal disagreed with the lower court’s interpretation but acknowledged that the lower court's decision was available and arguable. The Court found that the respondent's acquittal was a decision within the meaning of the Criminal Appeals Act, and thus, the appellant had a reasonable prospect of success in the appeal. Consequently, the Court granted leave for the appeal, allowing the matter to proceed further. The Court did not provide final orders but indicated that the appeal would be heard on its merits.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In those circumstances, there is only one true construction of the relevant Regulations and Act and so it is for this Court to determine for itself the proper construction of the statute.[6] So, for example, while the respondent relied in this Court on a 'finding' below that a gel blaster was not a 'weapon' within the common law or ordinary sense, that reasoning would not have to be accepted in this Court.[6] Electricity Generation & Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [229]; Laufer v Gear [2021] WASCA 2 [20]. Although discussing the interpretation of a contract, the following observations of Allsop P (as he then was) in OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1 [61] are pertinent, analogously:That there is one true meaning does not detract from the pervasive reality that a contract will often have potentially more than one meaning, that words are inherently contextual in their meaning and that reasonable minds often differ about what is their true meaning … Further, structure of the text and the relative weight and influence of context and purpose can strike people differently. That is why the process of construction is not a process necessarily concluded by logical reasoning or a priori analysis. It involves the weighting of different considerations partly logical and partly intuitive (though rational) leading to a choice. Analysis of competing arguments assists in that process, but the 'correct' answer is not arrived at merely by seeing which side has the greater number of 'good' points … In the context of litigation over the meaning of words, the true meaning is the choice made from the competing potential meanings by the last court that has authority on the matter. (citations omitted) Respectfully, I have reached a different conclusion from that of the learned Magistrate. However, the view the learned Magistrate reached was 'available and arguable' and certainly not 'unsustainable'.[7][7] To adopt the language of Allsop P in OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd [62]. The learned Magistrate's decision to acquit the respondent was a 'decision' within s 6(e) of the Criminal Appeals Act 2004 (WA). The appellant seeks leave to appeal pursuant to s 7(1) and s (8)(1)(a)(i) of the Criminal Appeals Act. By s 9(1) of the Criminal Appeals Act, the appellant requires leave. By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court it satisfied that it has a reasonable prospect of succeeding.[8][8] Samuels v State of Western Australia (2005) 30 WAR 473 [56]. The respondent did not oppose leave being granted, but contends that the appeal should be dismissed. The preamble[9] to the Weapons Act was:An act to prohibit the bringing or sending into the State, carriage, possession, purchase, sale, supply and manufacture of certain weapons, to control the carriage and possession of other weapons, to amend: ●the Firearms Act 1973; and ●the Police Act 1892,and for related purposes.[9] By s 31(1) of the Interpretation Act 1984 (WA) 'The preamble to a written law forms part of the written law and shall be construed as a part thereof intended to assist in explaining its purport and object'.